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HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-SMA-2022-000018) RAhuPohakuHoomaluhia AmendSMA.-12/20/22 COUNTY OF HAWAII PLANNING DEPARTMENT RECOMMENDATION AHU POHAKU HO`OMALUHIA LLC (FORMERLY ROBERT WATKINS AND JEAN SUNDERLAND) AMENDMENT TO SPECIAL MANAGEMENT AREA USE PERMIT NO. 417 (PL-SMA- 2022-000018 Upon review of the request against the guidelines for granting a Special Management Area (SMA) Use Permit, the Planning Director recommends that the request to increase the number of guest rooms from sixteen to thirty-six by constructing twenty additional guest rooms at Hawaii Island Retreat, on an approximately 5.0-acre portion of a 14.5-acre parcel of land situated in the Special Management Area be approved by the Planning Commission. Since this recommendation is made without the benefit of public testimony, the Director reserves the right to modify and/or alter this recommendation based upon additional information presented at the public hearing. This approval recommendation is based on the following findings: The applicant is requesting to amend the existing Special Management Area (SMA)Use Permit (SMA 417), originally approved by the Planning Commission on August 2, 2001, to allow a 16-room permaculture and wellness retreat on an approximately 5.0-acre portion of a 14.5-acre parcel of land situated in the Special Management Area. The applicant wishes to increase the number of guest rooms from 16 to 36 by building 20, 400-square foot hales with the goal of offering guests the option of single-occupancy rooms. The new hale structures will be sited in a manner that does not disrupt or impact the existing garden and orchards. According to the applicant, there will be up to 5 new full and/or part-time employees and the projected cost of the additional 20 units is $1.8 million. Building plans will be prepared upon approval of the requested amendments, with construction of 10 of the 20 units commencing no later than 18 months after approval, and construction of the remaining 10 units commencing approximately 5 —6 years after approval. As the applicant is proposing to amend the scope of the use, the request has been analyzed as if it were a new SMA Use Permit. The grounds for approving development within the SMA are based on HRS, Chapter 205A-26(2) (SMA guidelines) and Rule 9- 11(e) of the Planning Commission Rules of Practice and Procedure. Planning Commission Rule 9-11(e) states that the Authority(Planning Commission) may permit the proposed development only upon finding that: 1. The development will not have any substantial adverse environmental or ecological effect except as such adverse effect is minimized to the extent practicable and is clearly outweighed by public health, safety or compelling public interest; 2. The development is consistent with the objectives and policies and the Special Management Area guidelines as provided by Chapter 205A, HRS; 3. The development is consistent with the General Plan, Community Plan, Zoning Code and other applicable ordinances; 4. The development will, to the extent feasible, reasonably protect native Hawaiian rights if they are found to exist, including specific factual findings regarding: a. The identity and scope of valued cultural historical or natural resources in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; b. The extent to which those resources including traditional and customary native Hawaiian rights, will be affected or impaired by the proposed action; and C. The feasible action, if any, to be taken by the Authority to reasonably protect any valued cultural, historical or natural resources including any existing traditional and customary native Hawaii rights. The proposed development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. In considering the significance of potential environmental effects, the -2- Director shall consider the sum of those effects that adversely affect the quality of the environment and shall evaluate the overall and cumulative effects of the action on the Special Management Area. Such adverse effects shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect and eliminate planning options. The proposed addition of 20 guest rooms is situated within an area of the property that has largely been developed for existing retreat uses and does not trigger the need for an environmental review pursuant to HRS, Chapter 343 (Environmental Impact Statements). Furthermore, there are no unique or sensitive ecosystems such as wetlands, anchialine ponds, etc. on or nearby the property that would be adversely affected by the development. Finally, no construction is proposed beyond the existing permit area, which is located approximately 100 feet mauka of the shoreline cliff, thus the proposed development is not expected to have a substantial adverse environmental or ecological effect upon the SMA. The proposed development is consistent with the objectives and policies as provided by Chapter 205A-26, HRS, and Special Management Area guidelines contained in Rule No. 9 of the Planning Commission Rules of Practice and Procedure. The purpose of Chapter 205A, Hawaii Revised Statutes (HRS) and Special Management Area Rules and Regulations of the County of Hawaii, is to preserve, protect, and where possible, to restore the natural resources of the coastal zone areas. Therefore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options. The objectives and policies of Chapter 205A, HRS include, but are not limited to, the protection of coastal recreational resources, historic resources, scenic and open space resources, coastal ecosystem, marine resources, beaches, and controlling development in coastal hazard areas. The proposed construction of 20 additional guest rooms and related improvements is consistent with the objectives and policies of the Coastal Zone Management Program (Chapter 205A, Hawaii Revised Statutes) including: -3- Coastal Recreational Resources: The permit area is located approximately 100 feet mauka of a shoreline cliff and sits at an elevation of approximately 150 feet. Condition No. 5 of SMA 417 required the applicants to develop a shoreline public access plan for the subject property that provides, at a minimum, a continuous traversable lateral public access along the coastal portion of the subject property, and access through Hanaula Gulch to the shoreline. Additionally, the applicants were required to allow vehicular access across the subject property and parking for a minimum of two vehicles for members of the public to use the shoreline access. The applicant established a public access plan that was approved by the Planning Department and recorded with the State Bureau of Conveyances on February 27, 2009, which requires that they remain responsible for maintenance of the public access trails, among other requirements. The applicant states that they maintain the public access trails with mowing and that members of the public regularly use the trails to access the shoreline for fishing and hiking recreation. By letter dated March 6, 2024, the Kohala Community Access Group (KCAG) proposed several amendments to the existing Declaration of Access and Utility Easements, or Public Access Plan, and the applicant drafted an agreement with KCAG to amend certain items in the Public Access Plan. As part of this approval recommendation, the condition addressing the Public Access Plan will require that the applicant amend and record the revised Declaration of Access and Utility Easements to reflect this agreement. Historic Resources: An archeological assessment of the subject property, including the permit area, was conducted by Hann and Associates on February 16, 2001. The assessment concluded that no historic or prehistoric artifacts or structures were observed on the proposed building sites. The Lincoln Family Burial Site is located near the subject property, to which access is provided in accordance with the recorded public access plan. By letter dated October 5, 2022, the State Historic Preservation Division (SHPD) indicated that a previous project review resulted in a"no historic properties affected" determination and provided a comments letter for the current request, indicating that due to the impacts on the permit area by the development of the existing retreat center, it is -4- unlikely that any unidentified historic properties remain intact within the permit area and SHPD noted no objection to the approval of the present request. A standard condition will continue to be included to address possible inadvertent archeological finds during the construction of the new guest rooms. Scenic and Open Space Resources: Visual impacts from Akoni Pule Highway, located one mile mauka of the permit area, are expected to be minimal due to existing vegetation located makai of the highway that does not allow a clear viewplane to the coastline. Coastal Ecosystems and Marine Resources: To address the potential impacts of soil erosion and water quality on marine resources and coastal ecosystems the applicant will be required to comply with Chapter 10, Erosion and Sedimentation Control, Hawaii County Code, and State Department of Health(DOH) water pollution control regulations. The applicant proposes to install additional septic system(s) to address the wastewater needs of the additional guest rooms. In an email dated November 25, 2022, DOH indicated that the additional individual wastewater systems could negatively impact the ocean due to proximity and soil type, however, despite attempts to follow up by the applicant, DOH has not specified a preferred method of wastewater disposal. According to the applicant, they will comply with DOH requirements if the proposed septic tanks are deemed insufficient during the building permit process, including the potential installation of an anaerobic septic system. The applicant will be required to install a wastewater treatment and disposal system that meets the requirements of the DOH and to maintain use of a solid waste management plan approved by the Department of Environmental Management(DEM). Conditions of approval will be included to address the preceding. Beach Protection: There are no beaches on or proximate to the subject property. Coastal Hazards: The permit area slopes gently seaward from the 150-foot elevation, is located in Flood Zone "X", an area determined by FEMA to be outside the 500-year flood plain, and outside coastal portions of the subject property that are subject to coastal flooding hazards such as storm waves. -5- Based upon the above information, the proposed development is consistent with the objectives and policies of Chapter 205A, HRS. The proposed development is consistent with the General Plan, North Kohala Community Development Plan (CDP), Zoning Code and other applicable ordinances. The County of Hawai`i's General Plan is the policy document for the long- range comprehensive development of the island of Hawaii. One of the purposes of the General Plan is to guide the pattern of future development in this County based on long- term goals. The General Plan Land Use Pattern Allocation Guide (LUPAG) Map designates the subject property as Important Agricultural Land and Open, however the proposed work is within the area designated Important Agricultural Land. As previously stated, the 5-acre permit area presently includes 3 acres of agricultural land planted with fruit trees, Hawaiian medicinal plants, and organic vegetable gardens, which will be maintained with the proposed development. Thus, the proposed use will support many of the agricultural land use policies of the General Plan and North Kohala CDP including the following policies: General Plan - Land Use-AEricultural Policy • Ensure that development of important agricultural land be primarily for agricultural use. North Kohala CDP Strate2y 1.4 • Promote and support a community of diversified agriculture. Additionally,the proposed use complements the following land use and recreation goals and policies of the General Plan: Land Use • Designate and allocate land uses in appropriate proportions and in keeping with the social, cultural and physical environments of the County. • Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environment. -6- Recreation • Provide a wide variety of recreational opportunities for the residents and visitors of the County. • Maintain the natural beauty of recreation areas. • Recreational facilities shall reflect the natural, historic and cultural character of the area. Finally, the North Kohala CDP addressed special permits allowing overnight accommodations, such as "retreats," and raised concerns about negative impacts that such developments may have on the area's limited infrastructure and small-town feel. While the CDP reflected community sentiment in 2008 in recommending that special permits allowing large-scale overnight accommodations not be approved, the Planning Department received testimony from the Acting Chair of the Growth Management Group of the North Kohala CDP Advisory Group (now the Kohala Community Access Group or KCAG) stating support of the applicant's request, with the condition that KCAG review and provide recommended revisions to the Public Access Plan which was completed as described previously. Reasons for KCAG's support of the applicant's request include unobtrusive siting of the additional guest rooms, community benefits in the form of job opportunities and shoreline public access, continued agricultural uses, and the ability to provide a distinct experience for visitors that reflects the character of the Kohala District. Given the preceding, the request will not be contrary to the General Plan and Community Development Plan. The development will to the extent feasible, reasonably protect native Hawaiian rights if they are found to exist. In view of the Hawaii State Supreme Court's "PASH" and "Ka Pa'akai O Ka'Aina" decisions, the issue relative to native Hawaiian rights, such as gathering and fishing rights, must be addressed. These rights must be addressed in terms of the cultural, historical, and natural resources and the associated traditional and customary practices of the site. Investigation of valued resources: As previously mentioned, an archeological assessment of the subject property, including the permit area, was done by Haun and -7- Associates on February 16, 2001. Additionally, a botanical survey of the subject property was conducted on February 12, 2001. The valuable cultural, historical, and natural resources found in the area: The archeological assessment concluded that no historic or prehistoric artifacts or structures were observed on the proposed building sites. The Lincoln Family Burial Site is located near the subject property, to which access is provided in accordance with the recorded public access plan. By letter dated October 5, 2022, the State Historic Preservation Division (SHPD) indicated that a previous project review resulted in a"no historic properties affected" determination and that due to the impacts on the permit area by the development of the existing retreat center, it is unlikely that any unidentified historic properties remain intact within the permit area and SHPD noted no objection to the approval of the present request. The botanical survey noted that endemic or indigenous species of plants found within the general area were situated within the Conservation District and not within the permit area. At that time, the study concluded that the establishment of the retreat center would not impact existing endemic and indigenous plants. According to recent comments from the State Department of Land and Natural Resources, Division of Forestry and Wildlife (DOFAW), the Hawaiian Hawk(`Io) Hawaiian Goose (Nene), Hawaiian Stilt, Hawaiian Coot, Hawaiian Duck, Hawaiian Hoary Bat(Ope`ape`a), and Blackburn's Sphinx Moth may occur in the project vicinity. Possible adverse effects or impairment of valued resources: Some vegetation may be destroyed by construction of additional guest rooms, but there is no evidence of adverse effects or impairments to valued resources. Feasible actions to protect native Hawaiian rights: Adherence to the requirements of the public access plan will continue to ensure access to the shoreline for fishing and gathering, along with access to the existing burial area nearby the subject property. Should any unidentified cultural or historical resource be encountered during construction activities, a condition of approval requires the applicant to cease work until SHPD finds that sufficient mitigation measures have been taken. -8- An additional condition of approval will be included, to address recommendations from DOFAW regarding protection of listed or endangered species and avoiding the spread of invasive species and pathogens. Lastly, this recommendation is made with the understanding that the Applicant remains responsible for complying with all other applicable government requirements in connection with the approved use,prior to its commencement or establishment upon the subject property. Additional governmental requirements may include the issuance of building permits, the installation of approved wastewater disposal systems, compliance with Fire Code, installation of improvements required by the American with Disabilities Act(ADA), among many others. Compliance with all applicable governmental requirements is a condition of this approval; failure to comply with such requirements will be considered a violation that may result in enforcement action by the Planning Department and/or the affected agencies. Based on the above findings, the proposed development will not have substantial adverse impacts on the environment, nor will its approval be contrary to the objectives and policies of Chapter 205A, HRS, relating to Coastal Zone Management and Rule No. 9 of the Planning Commission relating to the Special Management Area. Approval of this request is subject to the following conditions (material to be deleted is bracketed and material to be added is underscored): 1. The applicants, successors or assigns (Applicant) shall be responsible for complying with all of the stated conditions of approval. 2. The construction of the retreat and the operation of all of its related facilities and activities shall be conducted in a manner that is substantially representative of plans and details as contained with the Applications for Special Management Area Use Permit and Special Use Permit, Proposed Hawaiian Permaculture and Wellness Retreat dated March 2001. Additionally, construction and operation of the additional guest rooms shall be conducted in a manner that is substantially representative of plans and details contained in the Application to Amend Special Management Area Use Permit No. 417 and Special Permit No. 1117 received by the Planning Department on June 14, 2022, additional information dated December 30, 2022, and representations made to the Leeward Planning Commission. -9- 3. The proposed addition of 20 guest rooms to the existing retreat shall be established within five (5) years from the effective date of this amended permit. Prior to establishing this use, the [ate] Applicant shall secure Final Plan Approval from the Planning Director in accordance with the Zoning Code, Sections 25-2-71 (f), 25-2-72, 25-2-76 and 25-2-77. Plans shall identify all existing and proposed structures, fire protection measures, potable water sources,parking area(s), access driveway(s) and landscaping [4] associated with the proposed use. The [a„ ] Applicant shall notify the Planning Department, in writing, of the completion of required improvements prior to commencing operation of the proposed retreat. [ ]4. The [ams] Applicant shall [hep-&}complywith requirements of the Declaration of Access and Utility Easements ("DAUE") recorded on February 27, 2009,-(public access plan)for the subject property that provides, at a minimum, a continuous traversable lateral public access along the coastal portion of the subject property, and access through Hanaula Gulch to the shoreline. [" "ffleaii ] The [ate] Applicant shall also continue to allow vehicular access across the subject property and parking for a minimum of two vehicles for members of the public to use the shoreline access. Further, the DAUE shall be deemed the approved public access plan covered by this condition, except as modified as per the April 8 and April 9, 2024, letters from the Applicant. This amended public access plan shall be submitted to the Planning Director for approval not more than one year after the granting of this amended permit and recorded with the Bureau of Conveyances. The Applicant shall provide a copy of the recorded DAUE to the Planning Department. [am] [ ] [-7-.]5• [The applieants shall stibmit photegfaphs of the site ffem elig top leeations east and west -10- that pfesently exists in the genet:al Et ]The existing grove of ironwood trees near the [prepesed] existing main building shall be retained as a landscaping buffer. [&]6. The [ate] Applicant shall permit native Hawaiians to exercise any gathering rights within the subject property and to cross the subject property to reach the shoreline through Hanaula Gulch. The applicants shall also permit Lincoln family members to visit the family graves. [9-.]7. [A Solid Waste Management Plai4 shall be s4mitted fef-Feview and appfeval by th-e pet4ion of the pfoposed ] The Applicant shall be responsible for maintaining use of the approved Solid Waste Management Plan. 8. All development-generated runoff shall be disposed of on site and not directed toward M adjacent properties. 9. All earthwork andrg adin activity ctivity shall conform to Chapter 10, Erosion and Sediment Control of the Hawaii County Code. [4-W]10. [ > of ehafeeal , ]In the event that surface or subsurface historic resources, including human skeletal remains, structural remains (e.g., rock walls, terraces, platforms, etc.), cultural deposits, marine shell concentrations, sand deposits, or sink holes are identified during the demolition and/or construction work, the Applicant shall cease work in the immediate vicinity of the find, protect the find from additional disturbance and contact the State Historic Preservation Division at(808) 933-7651. Subsequent work shall proceed upon an archaeological clearance from DLNR-SHPD when it finds that sufficient mitigation measures have been taken. 11. Should any state or federally listed or endangered species be found on the subject property, the Applicant shall comply with all applicable requirements of the Department of Land and Natural Resources—Division of Forestry and Wildlife and/or the United States Fish and Wildlife Service. [44-.]12. Comply with all applicable laws, rules, regulations and requirements of the affected agencies including those of the Department of Public Works, Department of Health, and the Fire Department, including a [waterer k with de"atea-paeity for-f4fenghtiffg } eses]fire suppression system for the additional guest rooms, meeting with the approval of the Fire Department. [4-2-.]13. A final status report shall be submitted in writing to the Planning Director upon compliance with all conditions of approval. [4-3-.]14. An initial extension of time for the performance of conditions within []this amended permit may be granted by the Planning Director upon the following circumstances: A. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, successors or assigns, and that are not the result of their fault or negligence. B. Granting of the time extension would not be contrary to the General Plan or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for the granting of the permit. D. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). 15. Should any of the foregoing conditions not be met or substantiallyplied with in a timely fashion, the Planning Director may initiate procedures to revoke the permit. -12-